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Many environmental law profs have commented on the drawbacks of cost-benefit analysis, particularly as applied by OIRA when it reviews major rulemakings. But what if OIRA's reach were extended even further, to independent agencies? The following is a cross-post with CPRBlog: Keeping the Independent Agencies Independent.

The proposed Independent Agency Regulatory Analysis Act, S. 3468, is a troubling idea. As Rena Steinzor explained here
when the bill was introduced, it would authorize the President to bring
independent agencies under the purview of OIRA. This proposal is
worrisome given the persistent flaws inherent in OIRA’s cost-benefit
approach; extending the reach of a poorly functioning process is hard to
justify. But even more problematic is where S. 3468 treads: the
domain of independent agencies. This development calls for thoughtful
attention to the reasons for independence in the first place.

The
fundamental difference between executive and independent agencies lies
in the degree to which each is insulated from presidential control. For
example, executive agencies are typically headed by individuals who
serve at the will of the President—but independent agencies are governed
by multi-member commissions who are removable only for cause. While
executive heads are usually members of the President’s party and serve
for indefinite terms, independent commissioners in most cases must come
from both parties and have fixed terms that extend beyond a single
administration.

It is worth emphasizing that the choice whether
to create an executive or independent agency lies with Congress. By
choosing an independent form, Congress puts in place a structure meant
to insulate those agencies—at least somewhat—from political pressures.
How do independent agencies achieve this goal? There are many ways,
but here I’ll mention those most salient to S. 3468. First, by being
shielded from the threat of removal, independent commissioners can make
policies that might conflict with those of the White House but that are
more consistent with those of Congress. Second, independent agencies
are meant to be experts in their regulatory field. They typically have a
narrower scope of responsibility than do executive agencies and can
thereby focus their attention on developing specialized knowledge about
their regulated industries. Certainly, expertise does not provide a
foolproof shield against politics—a point I and others have frequently made—but the possibility of providing at least some insulation is a goal well worth pursuing.

In
addition, the multi-member structure of many independent agencies
serves deliberative values; decisions are less likely to amplify
short-term political views when groups comprised of different viewpoints
must make ultimate decisions. The bipartisan, multi-member mix also
promotes long-term stability and helps insulate these agencies—again, at
least more than executive agencies—from interest-group capture.

Even
though independent agencies don’t function as perfectly as we might
like, putting their rulemakings through OIRA review would undercut the
ultimate goal of shielding them from politics. As the President himself
has acknowledged,
OIRA review is the key means by which the President directs regulatory
policy. For Congress to suggest this type of review for agencies that Congress itself meant to protect from presidential policy is both illogical and short-sighted.

Independent
agencies are not lacking for checks on their exercises of discretion.
Their mandates are frequently extraordinarily precise, both
substantively and procedurally. Further, independent agencies are
subject to the requirements of the Administrative Procedure Act, and
courts make no distinctions between agency types when reviewing
exercises of expert discretion. One of the only procedural distinctions
between types of agencies, therefore, is that independent agencies do
not undergo OIRA review. To remove that distinction—a last bulwark
against politics—would be to lose an important source of
experimentation, comparison, and diversity in the regulatory process.